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Western Australian Electoral Reform

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Western Australian Electoral Reform The Long, Long Road: Western Australian Electoral Reform* Martin Drum, Sarah Murray, John Phillimore and Benjamin Reilly1 Associate Professor, Politics and International Relations, University of Notre Dame Australia. Professor, Law School, The University of Western Australia. Professor and Executive Director, John Curtin Institute of Public Policy, Curtin University. Professor, Political Science and International Relations, The University of Western Australia. * Double-blind reviewed article. Abstract Electoral Acts are central to the manner in which elections are conducted, and determine whether the outcomes of these elections are free and fair. Australia has experienced a considerable degree of electoral reform in recent years; this article assesses how Western Australia’s Electoral Act 1907 (WA) fares in key areas. The article considers four crucial areas in which WA lags behind best practice in Australia: malapportionment, ticket voting, political financing and postal voting. The article outlines where concerns lie in these areas, and what potential solutions are available to legislators. 1 The authors are members of the Electoral Policy Network of Western Australia and would like to thank fellow members, Dr Yvonne Haigh, Dr Lachlan Umbers and Dr Narelle Miragliotta for their support. The authors also wish to thank the reviewers for this article, whose feedback has been helpful and constructive. 40 INTRODUCTION On 13 March 2021, Western Australians went to the polls to elect a new Parliament. While the Legislative Assembly result became the subject of much discussion on account of the extraordinarily one-sided result (with Labor winning 53 of the 59 seats, to the Liberal Party’s two and the Nationals’ four), two separate but equally extraordinary stories were playing out in the Legislative Council. First, the Daylight Saving Party candidate in the Mining and Pastoral Region, Wilson Tucker, won a seat in the Council with just 98 primary votes, in an election where 1,467,159 votes were cast for that House, and where unsuccessful upper house candidates in metropolitan Perth received as many as 27,077 votes.2 The result was all the more remarkable given that the Mining and Pastoral Region has consistently voted against daylight saving at four referenda, the most recent being in 2009 when 65.89% of voters in that region rejected its adoption.3 Second, the Labor Party won a record 22 seats in the 36 Member Legislative Council—its first ever majority, buttressed by its astonishing 60% primary vote. The election result shone a spotlight on problems in the Electoral Act 1907 (WA) (the Electoral Act), especially in two key areas, malapportionment and group ticket voting, and the opportunity that now presents itself for reform. This article reviews the Electoral Act and considers whether Western Australia (WA) is falling behind other Australian jurisdictions in key areas of electoral reform. In 2018, a parliamentary committee report on the 2017 WA election noted that: The outdated Electoral Act [in WA] … is a hodgepodge of contradictory provisions that often make no sense … our electoral process is becoming stuck in the past … legislative reform must be urgently undertaken and the Western Australian Electoral Commission appropriately resourced in the future.4 2 This was the Greens candidate for North Metropolitan Region. Western Australian Electoral Commission 2021 State General Election: First Preference Analysis Reports. Perth: WAEC, 2021. Accessed at: https://www.elections.wa.gov.au/elections/state/sgelection#/sg2021/LCDetailResults 3 Western Australian Electoral Commission. 2009 Western Australian Referendum on Daylight Saving. Perth: WAEC, 2010. 4 Community Development and Justice Standing Committee (CDJSC), 2017 WA State Election: Maintaining Confidence in Our Electoral Process. Perth: Legislative Assembly, Parliament of Western Australia, 2018. Accessed at: AUSTRALASIAN PARLIAMENTARY REVIEW 41 This comment is reflective of a broader pattern of WA elections falling behind national electoral best practice in crucial aspects. While a wholesale review of the Electoral Act would be ideal, this article will examine four specific areas of electoral practice which impact heavily on the integrity of WA’s electoral system and which provide a basis for analysing whether WA’s electoral system meets contemporary electoral standards. These four areas are: 1. Malapportionment, in both the Legislative Assembly and Legislative Council; 2. Ticket voting in the Legislative Council; 3. Regulation of political donations and campaign expenditure; and 4. Postal voting practices.5 MALAPPORTIONMENT One critical component of any electoral law is the way electoral districts and regions are defined, as this in turn influences the number and indeed the nature of Members elected to each House. The current arrangements under WA’s Electoral Act are characterised by significant malapportionment between districts in the Legislative Assembly and, especially, between regions in the Legislative Council. Malapportionment—that is, systemic deviation in the number of electors between electoral districts—has a long history in Australia, as Jackman found in his survey of electoral bias from 1949 to 1993.6 There has been significant research into malapportionment and its impact on the outcome of elections in recent decades.7 https://www.parliament.wa.gov.au/Parliament/commit.nsf/(Report+Lookup+by+Com+ID)/AF9E28D58010F9FD48 2582330018A9DC/$file/20180201+-+RPT+-+Full+Report+-+FINALISED+-+Online+version.pdf 5 There are a range of other issues which are potential areas for reform, such as truth in electoral campaigning, and the regulation and duration of early voting, but it was not possible to canvass all of these in this article. Our focus is on areas where WA is behind—and often well behind—best practice elsewhere in Australia. 6 S. Jackman, ‘Measuring Electoral Bias: Australia, 1949-93’. British Journal of Political Science 24(3) 1994, pp. 319- 357. 7 A. Siaroff, ‘Spurious Majorities, Electoral Systems and Electoral System Change’. Commonwealth & Comparative Politics 41(2), 2003, pp. 143-160; N. Kelly, ‘Research Note. Western Australian Electoral Reform: Labor Finally Succeeds’. Australian Journal of Political Science 41(3) 2006, pp. 419-426; A. Davies and M. Tonts, ‘Changing Electoral Structures and Regional Representation in Western Australia: From Countrymindedness to One Vote One VOL 36 NO 1 AUTUMN/WINTER 2021 42 Malapportionment undermines the notion of a legitimate government. Our Parliaments have the right to make decisions which bind us as a community because they purport to represent the collective decision of the public. This collective decision is seen as legitimate because all voters have the same right to elect the Members who sit in the Parliament that represents them. Without fair elections based on equal voting rights, the notion of legitimacy is compromised. Malapportionment raises the possibility of the ‘spurious majority’, where parliamentary majorities are formed despite a party (or coalition of parties) losing the popular vote to another party (or coalition). Spurious majorities occur more often where there are malapportioned electorates. Advocates for malapportionment point out that equal representation for every voter in geographically large and sparsely-settled jurisdictions like WA means that rural communities would have a lesser voice in Parliament, and regional constituents would be unable to access local MPs effectively. They also argue that rural and regional voters are among the most economically and social disadvantaged people in the community.8 Yet there are many other marginalised or disadvantaged groups within a community who can also claim to lack a political voice, lack access to MPs, or have an insufficient say in decision-making. Improved telecommunications and provision of greater financial resources to MPs representing large electorates can help compensate for difficulties in providing electors with representation and access functions, without the need for malapportioned electorates. Over time, the equal representation argument has increasingly prevailed in Australia. Malapportionment in WA’s Legislative Assembly After more than a century of debate and struggle, historic electoral reform legislation in 2005 achieved ‘one vote one value’ across almost all lower house electorates in WA.9 Section 16 of the Electoral Act divides the state into 59 single member electorates (or Value’. Space and Polity 11(3) 2007, pp. 209-225; G. Orr and R. Levy, ‘Electoral Malapportionment: Partisanship, Rhetoric and Reform in the Shadow of the Agrarian Strongman’. Griffith Law Review 18(3) 2009, pp. 638-665; N. Kelly, Directions in Australian Electoral Reform: Professionalism and Partisanship in Electoral Management. Canberra: ANU Press, 2012. 8 M. Davies, ‘Country Voters Need a Strong Political Voice’. The West Australian, 28 March 2019. Accessed at: https://www.miadavies.com.au/country-voters-need-a-strong-political-voice/ 9 Kelly, ‘Research Note’. AUSTRALASIAN PARLIAMENTARY REVIEW 43 districts), with most required to be within 10 percent of the Average District Enrolment (ADE), which at the time of the 2021 State Election was 29,097 (the total number of electors divided by the number of districts). However, special provision was made for districts of 100,000 square kilometres or more, via what is termed the Large District Allowance (LDA). The bigger the size of the electorate, the larger the LDA. In effect, this has meant that four electorates
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